There is an interesting trial that is about to start in Kentucky. Bobbie Jo Clary is charged with murder in connection with the beating death of 64 year-old George Murphy in his home in October 2011. Geneva Case, who entered into a same-sex civil union with Clary in Vermont nine years ago, has bee subpoenaed to testify against Clary. In response, Case has sought to invoke Kentucky's spousal privileges. Kentucky Rules of Evidence 504(a) & (b) provide the following:

(a) Spousal testimony. The spouse of a party has a privilege to refuse to testify
against the party as to events occurring after the date of their marriage. A party
has a privilege to prevent his or her spouse from testifying against the party as to
events occurring after the date of their marriage.

(b) Marital communications. An individual has a privilege to refuse to testify and
to prevent another from testifying to any confidential communication made by the
individual to his or her spouse during their marriage. The privilege may be
asserted only by the individual holding the privilege or by the holder's guardian,
conservator, or personal representative. A communication is confidential if it is
made privately by an individual to his or her spouse and is not intended for
disclosure to any other person.

Clary and Case consider themselves married and presumably would be married if Kentucky allowed for same-sex marriage. It does not. So, should Case be able to invoke Kentucky's spousal privileges despite not being married to Clary?

In 2011, Maryland allowed a woman in a same-sex marriage to invoke Maryland's spousal privilege. In that case, though, the woman invoking the privilege was married to the defendant although the marriage did not take place in Maryland, which at the time did not allow same-sex marriage. Back in 2008, I posted an entry about the implications of California striking down the ban on same-sex marriage on spousal privileges, but, again, the assumption there was that there would be an actual marriage.

Many of the articles talking about the Kentucky case reference New Mexico as a state that allows partners in a same-sex union to invoke evidentiary principles, but I haven't found anything backing up those stories. Indeed, according to Lisa Yurwit Bergstrom & W. James Denvil, Availability of Spousal Privileges for Same-Sex Couples, 11 U. Md. L.J. Race, Religion, Gender & Class 224, 255 (2011), "in New Mexico, the evidentiary privilege refers to “husband” and “wife,” so same-sex spouses may not qualify." Maybe, however, something has happened since 2011.

In any event, what will it take for the judge in Kentucky to apply the spousal privileges to Clar?. According to Kentucky courts, the purpose of the marital privileges is to promote marital harmony and the institution of marriage. As the Court of Appeals of Kentucky noted in Mack v. Ammons, 2006 WL 3458084 (Ky.App. 2008),

In an effort to preserve marital harmony, KRE 504(a) extends two privileges to a husband and wife. KRE 504(a) allows the spouse of a party the privilege to refuse to testify against the party and also allows a party the privilege to prevent a spouse from testifying against him or her.

And, as the Supreme Court of Kentucky noted in St. Clair v. Commonwealth, 174 S.W.3d 474 (Ky. 2005), "[b]oth privileges are designed to protect and enhance the marital relationship at the expense of otherwise useful evidence."

So, the question for the court in Kentucky is whether it wants to protect and enhance a same-sex union at the expense of valuable evidence at a murder trial. Many would like to think that the answer is "yes," but it is easy to see the answer being "no." The marital privileges do not apply when one spouse is charged with a crime against the other or when the spouses are engaged in a joint criminal enterprise. According to courts, these are not the types of marital relationships worthy of enhancing and preserving. Will the judge(s) in Kentucky take a similar view of same-sex unions or embrace the idea of two women joining together in a union that would be a marriage if Kentucky law allowed it? We'll see.